Jayesh Lalwani, Vadodara V. The ITO, Ward-1, Godhra

ITA 2067/AHD/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6583 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 14-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Question of law; Set aside
• Section: 143(3)

Judgement Text

, SMC IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ./ I.T.A. NO. 2067/AHD/2017 ( ASSESSMENT YEAR : 2008-09) JAYESH LALWANI 21, SUVIDHANAGAR SOCIETY, BEHIND YOGHESHWAR NAGAR, GODHRA / VS. THE INCOME TAX OFFICER WARD 1, GODHRA ./ ./ PAN/GIR NO. : ACMPL0285E ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI TUSHAR P. HEMANI, A.R. / RESPONDENT BY : SHRI JAMES KURIAN, SR.D.R. DATE OF HEARING 31/07/2019 / DATE OF PRONOUNCEMENT 02/08/2019 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-4, VADODARA (CIT(A) IN SHORT), DATED 23.06.2017 ARIS ING IN THE ASSESSMENT ORDER DATED 17.03.2016 PASSED BY THE ASSESSING OFFI CER (AO) UNDER S. 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (THE ACT) CONCERNING AY 2008-09. 2. THE GROUNDS OF APPEAL RAISED BY ASSESSEE READ AS UNDER: ITA NO.2067/AHD/17 [JAYESH LALWANI VS. ITO] A.Y. 2008-09 - 2 - 1.00 ORDER IS BAD IN LAW. 1.01 ON THE FACTS AND CIRCUMSTANCES OF YOUR APPELL ANT'S CASE AND IN LAW, THE HON'BLE CIT (APPEAL) HAS ERRED IN DISPOSING APP EAL OF APPELLANT WITHOUT PROVIDING ANY OPPORTUNITY OF BEIN G HEARD WITHOUT PROVIDING PERSONAL HEARING. 1.02 YOUR APPELLANT PRAYS THAT THE ORDER BE TREATE D AS BAD IN LAW. 2.00 ADDITION OF RS. 23, 42,276 /- U/S 68 OF THE IN COME TAX ACT, 1961 AS UNEXPALINED CASH AND CHEQUES DEPOSITS INTO BANK ACCOUNT. 2.01 ON THE FACTS AND CIRCUMSTANCES OF YOUR APPELLA NT'S CASE AND IN LAW, THE HON'BLE CIT (APPEAL) HAS ERRED IN CONFIRMING TH E ACTION OF LD. AO BY MAKING ADDITION TO THE TUNE OF RS. 23,42,276/ - AS UNEXPLAINED CASH CREDIT WITHOUT CONSIDERING THE FAC TS OF THE CASE. THE HON'BLE CIT (APPEAL) FAILED TO APPRECIATE THE A UTHENTIC FACTS AND CIRCUMSTANTIAL EVIDENCES FURNISHED BEFORE THE H ON'BLE CIT (APPEAL) TO PROVE THE GENUINENESS AND CREDITWORTHIN ESS OF TRANSACTION FOR SUCH UNWARRANTED AND UNJUSTIFIED AD DITION OF UNEXPLAINED CASH CREDIT. THE SAME HAS BEEN COMPLETE LY IGNORED. 3. THE ASSESSEE HAS ALSO FILED ADDITIONAL GROUND CH ALLENGING THE JURISDICTION ASSUMED UNDER S.147 OF THE ACT WHICH R EADS AS UNDER: THE APPELLANT, THROUGH OVERSIGHT, COULD NOT RAISE IN THE ORIGINAL APPEAL MEMO, THE FOLLOWING LEGAL GROUND OF APPEAL AND THER EFORE, APPELLANT NOW CRAVES LEAVE TO RAISE THIS ADDITIONAL GROUND OF APP EAL BEFORE THIS HON'BLE ITAT. THIS, BEING A LEGAL GROUND, CAN BE RAISED BEF ORE HON'BLE THE ITAT AS PER DECISION OF HON'BLE SUPREME COURT IN THE CAS E OF 'NATIONAL THERMAL POWER - 229 ITR 383'. 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN REOPENING THE ASSESSME NT UNDER SECTION 147 OF THE ACT. 4. WHEN THE MATTER WAS CALLED FOR HEARING, THE LEAR NED AR FOR THE ASSESSEE REQUESTED FOR ADMISSION OF ADDITIONAL GROU ND CONCERNING JURISDICTION ISSUE RAISED WITH REFERENCE TO SECTION 147 OF THE ACT. WHEN ENQUIRED BY THE BENCH, IT WAS ADMITTED THAT THE ISS UE CHALLENGING THE JURISDICTION WAS NOT RAISED BEFORE THE LOWER AUTHOR ITIES. THE LEARNED AR HOWEVER INSISTED THAT THE LEGALITY OF JURISDICTION CAN BE RAISED BEFORE THE TRIBUNAL FOR THE FIRST TIME AS THE RELEVANT FACTS A RE AVAILABLE ON RECORD. ITA NO.2067/AHD/17 [JAYESH LALWANI VS. ITO] A.Y. 2008-09 - 3 - 5. THE LEARNED DR, ON THE OTHER HAND, SUBMITTED THA T THE ISSUE RAISED IN THE ADDITIONAL GROUND TOWARDS LEGALITY OF JURISD ICTION HAS NOT BEEN EXAMINED BY THE LOWER AUTHORITIES AND THEREFORE IT WILL NOT BE PROPER FOR THE TRIBUNAL TO EXAMINE THE ISSUE FOR THE FIRST TIM E WITHOUT TAKING COGNIZANCE OF THE OBSERVATIONS OF THE LOWER AUTHORI TIES ON THIS SCORE. 6. AS NOTED ABOVE, THE ASSESSEE HAS CHALLENGED THE VALIDITY OF ASSUMPTION OF JURISDICTION UNDER S.147 OF THE ACT. IT IS NOTICED THAT THE ISSUE WAS NEITHER RAISED BEFORE THE AO NOR BEFORE T HE CIT(A). IT IS HOWEVER WELL SETTLED THAT THE PROVISION WHICH CONFE RS THE JURISDICTION FOR ASSESSMENT AND RE-ASSESSMENT COULD NEVER BE WAIVED FOR THE SIMPLE REASON THAT THE JURISDICTION COULD NEITHER BE WAIVE D NOR CREATED BY CONSENT. THE TRIBUNAL IS THUS NOT PREVENTED FROM C ONSIDERING THE QUESTION OF LAW TOWARDS JURISDICTION ALTHOUGH NOT R AISED EARLIER. THE QUESTION OF INHERENT LACK OF JURISDICTION TO RE-OPE N A CASE GOES TO THE ROOT OF THE MATTER AND SUBSTANTIALLY AFFECTS THE RI GHTS OF THE ASSESSEE IF THE ILLEGAL PROCEEDING ON THE BASIS OF WRONGFUL USU RPATION OF JURISDICTION IS ALLOWED TO CONTINUE. IT THUS APPEARS TO US THAT THE ASSESSEE IS ENTITLED TO PLEAD LACK OF JURISDICTION FOR THE FIRST TIME BE FORE THE TRIBUNAL. WE HOWEVER IN THE SAME VAIN OBSERVE THAT THE PROS AND CONS OF THE OBJECTIONS OF THE ASSESSEE WITH REGARD TO JURISDICT ION REQUIRES TO BE EXAMINED BY THE REVENUE AUTHORITIES TO ENABLE US TO TAKE AN INFORMED VIEW ON THE ISSUE. WE THUS CONSIDER IT EXPEDIENT T O RESTORE THE ISSUE TOWARDS LACK OF JURISDICTION TO THE FILE OF THE CIT (A). IT SHALL BE OPEN TO THE ASSESSEE TO RAISE THE OBJECTIONS IN CONNECTION WITH THE ASSUMPTION OF JURISDICTION UNDER S.147/148 OF THE ACT. THE CIT(A ) SHALL EXAMINE THE LEGALITY OF ASSUMPTION OF JURISDICTION IN ACCORDANC E WITH LAW AND PASS A SPEAKING ORDER IN THIS REGARD. 7. AS THE ISSUE OF JURISDICTION HAS BEEN REMITTED B ACK TO THE FILE OF THE CIT(A), WE ALSO CONSIDER IT EXPEDIENT TO SET AS IDE THE ORDER OF THE CIT(A) ON MERITS AND RESTORE THE ISSUES RAISED BEFO RE THE CIT(A) ON MERITS ONCE AGAIN TO THE FILE OF THE CIT(A) FOR DE NOVO EXAMINATION AFTER ITA NO.2067/AHD/17 [JAYESH LALWANI VS. ITO] A.Y. 2008-09 - 4 - GRANTING REASONABLE OPPORTUNITY TO THE ASSESSEE AND AFTER MAKING OR CAUSE TO MAKE SUCH ENQUIRY AS MAY BE CONSIDERED NEC ESSARY FOR ADJUDICATION ON MERITS. CONSEQUENTLY, THE ORDER OF THE CIT(A) IS SET ASIDE AND ALL ISSUES ARE REMITTED BACK TO THE FILE OF THE CIT(A) FOR DETERMINATION IN TERMS OF DIRECTIONS NOTED ABOVE A ND IN ACCORDANCE WITH LAW. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. SD/- SD/- (RAJPAL YADAV) (PRADIP K UMAR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 02/08/2019 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+4 56) / DR, ITAT, AHMEDABAD 7. 289 : / GUARD FILE. BY ORDER / 4 /5 *+4 56) THIS ORDER PRONOUNCED IN OPEN COURT ON 02/08/2 019